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General Memorandum 15-020

General Memorandum 15-020
Department of Transportation Tribal Self-Governance Bill Introduced

On February 25, 2015, Representatives Peter DeFazio (D-OR) and Don Young (R-AK) introduced the "Tribal Transportation Self-Governance Act of 2015" (HR 1068), legislation that would expand the Indian Self-Determination and Education Assistance Act (ISDEAA) to all programs and divisions within the Department of Transportation (DOT) that provide funding to tribes. Representative DeFazio is the Ranking Member of the House Transportation and Infrastructure Committee and Representative Young is the Chairman of the House Natural Resources Subcommittee on Indian, Insular, and Alaska Native Affairs. The bill would enact language included in the tribally produced Tribal Transportation Unity Act (a product of the Tribal Transportation Unity Caucus), and is the same as the language contained in 2012's HR 7, which was approved by the House Transportation Committee but not enacted into law.

The bill would be of significant assistance to tribes seeking to operate comprehensive transportation and transit programs. It would enable tribes and tribal organizations to consolidate funding they receive from DOT agencies—including the Federal Transit Administration, the National Highway Traffic Safety Administration, and the Federal Aviation Administration—and combine them in one ISDEAA compact and annual funding agreement with funds already provided under the Tribal Transportation Program.

Representative DeFazio announced his and Representative Young's introduction of the bill in remarks to the National Congress of American Indians' Executive Council Winter Session on February 25, 2015. He stated that while he was pushing for increases in funding for tribal transportation programs, he also seeks to advance provisions such as the Tribal Transportation Self-Governance Act that will increase efficiency, reduce federal interference with tribes' own decisions, and recognize tribal authority to self-govern.

Tribes have been pushing for application of ISDEAA to the DOT for many years. Tribes were first included as eligible contractors for transportation funds in 1998's TEA-21 highway bill. The 2004 reauthorization of that Act, SAFETEA-LU, provided that the DOT was to contract transportation programs to tribes "in accordance with ISDEAA." Rather than just apply ISDEAA to the Tribal Transportation Program, the Bureau of Indian Affairs and the Federal Highway Administration have produced "program agreements" that apply some ISDEAA principles, but not all. Further, these program agreements are limited to those agencies; they do not incorporate funds from other agencies or divisions. This bill would not affect any of the current program agreements, and tribes could enter into new program agreements if they see fit.

HR 1068 would also enable tribes to reprogram non-grant funds under the ISDEAA compact and funding agreement, directing resources to transportation programs or projects without federal interference. Importantly, the application of ISDEAA ensures that tribal projects would be covered by the Federal Tort Claims Act and that tribes can utilize the "final offer" mechanism to force a federal decision on a submitted compact or agreement. HR 1068 is largely modeled on the Title V self-governance program in ISDEAA.

Hobbs, Straus, Dean and Walker, LLP provides comprehensive legal and advocacy services on tribal transportation and related issues. If you have any questions about HR 1068 or other transportation matters—please do not hesitate to contact us at the information below.

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Inquiries may be directed to:
Geoff Strommer (gstrommer@hobbsstraus.com or 503-242-1745)
Michael Willis (mwillis@hobbsstraus.com or 202-822-8282)
Adam Bailey (abailey@hobbsstraus.com or 916-442-9444), or
Marie Howard Fabrizio (mhoward@hobbsstraus.com or 202-822-8282)

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